sometimes constructed next to the building, or next to the curb, and where the protection around the stairs is by a railing; in which case the protection or railing must be three feet high, and is permanent, and is the only protection required. The iron door openings in the present case are entirely different, and the usual protection to pedestrians are the sides of the door, as was the case of Rider v. Clark. The complaint seems to proceed upon the theory that the opening, with the doors, the stairs, and the cellar, were all unauthorized, and in violation of the ordinance, and together constituted a nuisance.

There

is nothing to show that the use of the basement by these means was unauthorized, except the ordinance, and this does not go so far. Indeed, it impliedly permits access to the basement of buildings from the sidewalk by means of stairs. When the accident occurred, the doors were open, and, as near as we can understand the complaint, the pleader left us ground to assume that he intended to allege that the doors were standing upright, and offered an impediment 16 inches high to protect and warn persons passing along the sidewalk. The complaint does not show how long these doors were, or how much space they occupied. If there had been a distinct allegation-which there is not-that the sides of the door were not high enough to offer reasonable protection to footmen in the daytime, or had alleged clearly that the doors were opened out and laid flat on the pavement, offering no protection, there would have been a different case presented. The complaint, as we have said, seems to rest on the assumption that the only right defendants had was to make an opening for a stairway and provide a fence or railing around such opening three feet high. The ordinance justifies no such position.

Plaintiff might have presented the distinct issue, on which she would have the right to be heard, that the iron doors, when open and standing upright, was a negligent and dangerous use made of the opening to the basement, irrespective of the ordinance. She evaded this issue, and relied on the prohibitions of the ordinance, which, as we have seen, does not over her case.

The judgment should be affirmed.

We concur: GRAY, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(137 Cal. 559)

FINK v. FINK. (S. F. 2,432.) (Supreme Court of California. Nov. 7, 1902.)

DIVORCE-FINDINGS-CONCLUSIONS OF LAW

DESERTION-STATUTES-CONSTRUCTION.

1. A finding in divorce that plaintiff had been guilty of willful desertion is a conclusion of law, not a finding of fact.

2. Civ. Code, § 96, provides that persistent refusal to have reasonable matrimonial intercourse as husband or wife, when physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion. Held, that the qualifying clause, "when there is no just cause for such refusal," applies equally to the first refusal mentioned and to the latter.

3. In divorce the court found the allegations of the complaint as to extreme cruelty to be true, but that plaintiff had refused matrimonial intercourse and had been guilty of desertion, within Civ. Code, § 96, and denied divorce, without finding that there was "no just cause for such refusal." Held, that the finding was insufficient to justify the conclusion, nor could the court on appeal say that the finding as to cruelty was a finding of cause for plaintiff's conduct.

Commissioners' decision. Department 1. Appeal from superior court, Alameda county; S. P. Hall, Judge.

Suit by Mary E. Fink against Alonzo W. Fink. From a judgment for defendant, plaintiff appeals. Reversed.

Henry McPike, for appellant. Reed & Nusbaumer and A. L. Frick, for respondent.

SMITH, C. This is a suit for divorce by the wife on the ground of extreme cruelty. The answer, by way of recrimination, alleges extreme cruelty on the part of the wife, and also desertion, as defined in section 96 of the Civil Code. The court finds all the allegations of the complaint to be true, and that none of the allegations of the answer are true, "except as to" the defense of desertion, as to which it is found, in effect, that for more than one year immediately preceding the suit the plaintiff refused to have matrimonial intercourse with the defendant, and that the refusal was not on account of health or physical condition of either party, nor was it reasonably necessary on such account; and as conclusion of law the court finds "that the plaintiff has been guilty of willful desertion of the defendant." Judgment was accordingly entered denying the plaintiff a divorce, and the plaintiff appeals from the judgment.

One of the grounds urged for reversal is the insufficiency of the evidence to justify the finding of "willful desertion"; but we do not perceive there is any such finding. The supposed finding is merely a legal conclusion from the specific facts found, as to which there is no specification. The question involved is, therefore, as to the sufficiency of the specific facts found on the issue of desertion to justify the conclusion inferred from them by the court. With regard to this. we are of the opinion that the qualifying clause in section 96 of the Civil Code (reading, "when there is no just cause for such refusal") equally applies to either of the refusals therein specified. The language of the section is, indeed, in this respect ambiguous. or rather amphibolous; but the reason of the qualification applies equally to both of the

cases provided for in the statute, and the maxim applies: "Idem ratio idem lex." The finding must, therefore, be regarded as insufficient.

Nor can we say, as matter of law, that the finding of extreme cruelty can be regarded as in effect finding that there was just cause for the plaintiff's conduct. The court took a different view, and may have been justified in doing so. Extreme cruelty-or, indeed, conduct less reprehensible-would, doubtless, have been a sufficient justification to the plaintiff, had it been in fact the cause of her conduct. But in the absence of any finding on the point, and of the contrary conclusion reached by the court, we cannot assume that it was, in fact, the cause. The judgment should, therefore, be reversed for lack of a sufficient finding on the issue of desertion.

We advise that the judgment be reversed, and the cause remanded for new trial.

We concur: GRAY, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for new trial.

(137 Cal. 575)

STEINHART v. SUPERIOR COURT OF MENDOCINO COUNTY. (S. F. 3.286.) (Supreme Court of California. Nov. 8, 1902.) CONDEMNATION OF RIGHT OF WAY-COMPENSATION-TEMPORARY POSSESSIONCONSTITUTIONAL LAW.

1. Code Civ. Proc. § 1254, provides that during condemnation proceedings the plaintiff may obtain an order to take possession of the property by paying into court sufficient money to compensate the defendant for the land if eventually condemned, or for damages if it is not condemned. Const. art. 1, § 14, provides that private property shall not be taken for public use without just compensation having first been made to or paid into court "for the owner." Held, that the statute is unconstitutional, since the money cannot be considered as "first" paid into court "for the owner" unless he can take it, and if the condemnation proceedings should fail, the money would be only a security for his damages, not available by him until judicially determined.

2. The second clause of Coust. art. 1, § 14, providing that no right of way shall be appropriated for any private corporation until full compensation be first made and paid into court for the owner, is violated by Code Civ. Proc. § 1254, authorizing an order for a railway company to enter into possession of land during proceedings seeking to condemn it for a right of

Mendocino county from making a certain order in condemnation proceedings. Writ granted.

Sullivan & Sullivan, E. A. Bridgford, and T. J. Roach, for appellant. Seawell & Pemberton and W. W. Cope, for respondent.

TEMPLE, J. This is an application for a writ of prohibition to prevent the respondent from making an order in a condemnation suit for a right of way at the instance and for the Albion Southeastern Railway Company, a corporation, putting such corporation in possession of certain lands of petitioner during the pendency of the proceeding, and before the value of the land sought to be taken has been ascertained. The order is sought pursuant to section 1254 of the Code of Civil Procedure, and, waiving some question as to whether the land sought to be condemned is sufficiently described in the petition, it may be assumed that the Code provisions have been followed. The main question is whether the section authorizing the court to make an order that such plaintiff may "take possession of and use the land and premises sought to be condemned, during the pendency and until the final conclusion of the proceedings brought to condemn," is constitutional. To obtain such order, the plaintiff must pay into court, "or give security for the payment thereof, to be approved by the judge of such court," sufficient money to compensate the defendant in case the land is finally taken, or for damages if for any reason the land be not taken. The defendant may apply to the court for the money, but a payment is deemed an abandonment of all defenses except the claim for greater compensation. In the nature of things, this provision for payment cannot apply to the claim of a defendant for unliquidated damages for the value of the use of the land, and damages thereto, if the land be not finally taken. As to such claim, the money is not paid into court for the defendant, but as security only. It is further provided that the deposit shall be at the risk of plaintiff until the court finally awards the money to the defendant, and the clerk and his sureties shall be liable therefor. In the former constitution the entire provision upon this subject was in these words: "Nor shall private property be taken for public use without just compensation." In 1861 an act was passed which contained provisions somewhat similar to section 1254 of the Code of Civil Procedure. In 1865 the Western Pacific Railroad Company commenced proceedings under the statute to condemn lands for a right of way through lands owned by Bernard C. Fox. At the commencement of the proceeding the railroad company filed a bond, as required by the act, and obtained an order authorizing it to take possession, and to continue in possession pending the proceeding. It took possession, and made the usual excavations and fills upon the land. The pro

ceeding was carried to a conclusion, and final judgment of condemnation entered. But before final judgment a suit was commenced against the railroad company for damages. The defendant justified under the order permitting it to take and hold possession. On appeal an elaborate opinion was handed down by Sanderson, J., and another by Sawyer, J. Several previous cases are summarily disposed of in the opinion. For instance, in City of San Francisco v. Scott, 4 Cal. 114, the court held that compensation must be made before the citizen can be devested of his rights. "It is not sufficient that the law points out the mode by which damage may be ascertained, and provides the party with a remedy to enforce his right. No such obligation can be imposed upon him. He is entitled to the damages which he has sustained, without resorting to a legal tribunal to enforce payment." This, it is said, means only that the damages must be paid before title will pass. Of course, it will be convenient for the person seeking to condemn to postpone that time indefinitely, if in the meantime he can have the use of the property. These propositions seem to be advanced and maintained in that case: (1) The constitution does not require payment before the taking, but only that it should be provided and made certain without unreasonable delay or expense to the property owner; (2) the court may, on the terms of the statute, authorize the party seeking to condemn to take immediate possession, and to use the property pending the proceeding, and such possession does not constitute a taking within the meaning of the constitution; and, conversely, title will not pass until payment is made. As far as the present inquiry is concerned, the most important proposition is that taking possession and using the property during the pendency of the proceeding is not a taking, within the meaning of the constitution. There was much more plausibility in the contention that, as the constitution then was, compensation need not be actually paid in advance. The more important proposition was overruled in Davis v. Railroad Co., 47 Cal. 517. The court uses the following language: "The occupation of land by a corporation, for its own purposes, pending the proceedings for condemnation, is a taking of the property, within the meaning of the constitution; and, as the bond does not cover such taking, the section of the statute under consideration is void." A lengthy opinion was rendered by Mr. Justice Crockett, and the case of Fox v. Railroad Co., 31 Cal. 538, is referred to, and confessedly modified. The same doctrine was declared in Waterworks v. Sharpstein, 50 Cal. 284; Sanborn v. Belden, 51 Cal. 266; Vilhac v. Railroad Co., 53 Cal. 208. At the time the present constitution was adopted (in 1879), the law as declared by the supreme court was as follows: The possession and use in terms authorized by the statute, before compensation had been made and while the

proceeding was pending, is a taking, within the meaning of the constitution; but the requirement of the former constitution, which only provided that private property should not be taken for public use without just compensation, was satisfied by a provision which insured the payment on reasonable terms as to delay and difficulty in the enforcement of the right. Viewed in the light of these facts, the change made in the language by the new constitution becomes significant. The following italicized words were added, and no other change was made in the general provision: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner." The purpose of the amendment is perfectly obvious. If the preliminary possession during the pendency of the proceeding is a taking, within the meaning of the constitution, it cannot be authorized until the damage resulting therefrom has been judicially determined, and the amount has been paid or tendered to the owner. This matter was discussed in the case of Coburn v. Townsend, 103 Cal. 233, 37 Pac. 202, by Mr. Justice McFarland, who came to the conclusion here reached, but he secured only a limited concurrence. The case of Waterworks v. Drinkhouse, 95 Cal. 220, 30 Pac. 218, is relied upon as authority for the proposition that section 1254 of the Code of Civil Procedure is valid and in accordance with the constitution. That case really involved the use of the discretion of the court under section 957 of the Code of Civil Procedure. The remarks made, however, may be considered as favorable to respondent here. Perhaps there it is true the money was paid into court for the owner. The amount had been determined by a valid judgment, which had been fully executed by paying the money into court for the defendant, and plaintiff had been put into possession under the judgment. Afterwards it was reversed on appeal.

I do not agree to the proposition that compensation is made to the owner by paying into court a sum of money before the damage has been judicially determined, and when the property owner cannot take the money. Surely, he is not compensated until he may take the money. It is not paid into court for him until he can take it. In the Spring Valley Case he might have taken. Here he could not, and therefore compensation in such a case is not first made. But this case comes within the purview of the second clause of section 14 of article 1 of the constitution. It is to condemn a right of way which cannot be appropriated until full compensation therefor be made in money, or ascertained and paid into court for the owner; and this compensation must be ascertained by a jury, unless a jury is waived as in other cases. These requirements have not been complied with, and could not be. To hold that possession of land may be given to

a person seeking to acquire a right of way by condemnation, during the pendency of the proceeding, and before the amount of compensation has been determined and paid to the owner, or into court for him, would be to hold that this so-called temporary possession is not a taking of private property for a public use. But both on authority and reason it is so.

These provisions are not in conflict with the fourteenth amendment of the federal constitution. All these provisions are but limitations upon the power of the legislature. They do not require the passage of any laws upon the subject, but state the conditions unon which the legislature may authorize the taking of private property for public use. If capable of two constructions, one of which would cause a conflict with the federal constitution, the other must be adopted. Construed with the fourteenth amendment, it would seem that the condition which the constitution expressly imposes upon the legislature, in granting the right to private corporations to acquire a right of way under the power of eminent domain, must apply to all other persons.

Wherefore, it is considered now here that the said court, and the Honorable J. H. Mannon, judge thereof, be restrained and prohibited from making said or any order authorizing said corporation to take possession or to use said land, or any of it, during the pendency of the proceeding to condemn and acquire a right in and over the same, or any part thereof, until final judgment shall be rendered in said proceeding, and the legal title to said right and easement shall pass as provided in the statute.

We concur: BEATTY, C. J.; HARRISON, J.; VAN DYKE, J.

(65 Kan. 676)

MILES v. MILES.

(Supreme Court of Kansas. Nov. 8, 1902.) DIVORCE-CARE OF CHILDREN-AUTHORITY OF COURT.

1. Under the provisions of section 645 of the Code of Civil Procedure (section 5138, Gen. St. 1901), the court retains the right at any time upon its own motion, or the suggestion of any one interested, to make such reasonable order as may be necessary upon either or both of the parties to a divorce action to provide for the guardianship, custody, support, and education of their minor children, and such orders may from time to time be changed. Such right exists independently of the provisions of section 568 of the Code of Civil Procedure (section 5054, Gen. St. 1901).

(Syllabus by the Court.)

In banc. Error from district court, Cowley county; W. T. McBride, Judge.

Action by Ora B. Miles against Henry Miles for divorce. Decree granted. Motion by plaintiff for modification as to the portion ¶ 1. See Divorce, vol. 17, Gent. Dig. § 793.

of the decree relating to the support of the children. From an order granting the motion, defendant brings error. Affirmed.

Hackney & Lafferty and J. E. Torrance, for plaintiff in error. J. Mack Love, for defendant in error.

CUNNINGHAM, J. The parties to this action were divorced upon the petition of the wife. She was granted alimony in accordance with their agreement, which included the payment of $1,500 in cash. She was also awarded the "custody, keeping, and maintenance" of the three minor children of the parties. About two years after the decree in the divorce proceeding was entered, the divorced wife filed her motion in the same case, asking that the decree theretofore granted be modified, and that the defendant be required to pay to the plaintiff toward the support, education, and maintenance of the three minor children during their minority such sums as to the court might seem just and equitable; the motion containing various reasons why such order should be made. Upon the hearing of this motion, plaintiff in error, by objection to the introduction of evidence, raised the question of the jurisdiction of the court to hear it, for the reason that the matter had been fully adjudicated, and for the further reason that, if the prior judgment was to be opened, it must be done by petition for that purpose, as provided for in section 568 of the Code of Civil Procedure (section 5054, Gen. St. 1901), and not by motion in the original case. These objections were overruled, and the court, after hearing the evidence, entered an order requiring the plaintiff in error to contribute to the support, maintenance, and education of the minor children of the parties by the payment to the defendant in error of the sum of $50 per quarter.

It is now insisted that this motion was for the purpose of modifying the judgment rendered in the divorce proceeding, and that, therefore, the court's jurisdiction, if it had any, must be found in said section 568, Code Civ. Proc., and must be invoked as therein provided. While the prayer of the motion was that the judgment be modified, we find from the entire motion the object thereof was only to have provision made for the support, maintenance, and education of the minor children. This was not a modification of the original judgment. That judgment decreed the divorce of the parties, contained a judicial ratification of the agreement which they had made for alimony to be paid to the wife, and directed that the care, custody, and control of the minor children be committed to the mother. It in no way otherwise provided for the maintenance and education of the children. By section 645 of the Code of Civil Procedure (section 5138, Gen. St. 1901), it is expressly provided: "When a divorce is granted the court shall make provi

sion for guardianship, custody, support and ↑ education of the minor children of the marriage, and may modify or change any order in this respect whenever the circumstances render such change proper." This section leaves the matter entirely in the hands of the court. He may at any time, upon proper notice, change any former order made with reference to these matters by adding to or taking from the burdens of either party relative to the same. And while the order made upon the hearing of this motion was that the plaintiff in error should pay to his divorced wife the sum named, such payment was not as alimony, but for the benefit of the children, and for the purposes indicated in the statute. She was, in effect, made a trustee to receive and disburse this money for these purposes. Any other competent person might have been designated as such trustee by the court. This statute has the effect to repose in the court the right and duty to require divorced parents to properly care for, maintain, and educate their children, notwithstanding the fact of the divorce, and to make such orders relative to payments of money from time to time until this result has been fully effectuated. Such orders might be made by the court upon its own motion, or moved thereto by the suggestion of any one immediately or remotely interested.

Plaintiff in error further contends that the contribution ordered by the court was in too great a sum. It is true, but little evidence was introduced showing his ability to make such payment. It is further true that he, although a witness in his own. behalf, in no way suggested his inability to respond to the requirement made upon him. The amount required to be paid is largely a matter within the discretion of the court. see no reason for thinking that this discretion was abused in this instance, especially So when the court has jurisdiction to modify and change this order at any time upon proper notice and showing.

We

The court's order in this respect will be affirmed. All the justices concurring. POLLOCK, J., not sitting; counsel court below.

(65 Kan. 689)

STATE v. NELSON. (Supreme Court of Kansas. Nov. 8, 1902.) HOMICIDE-SELF-DEFENSE-INSTRUCTIONS. 1. On a trial for murder, where the defendant relied on the defense of self-defense, an instruction stating, in substance, that, if the defendant shot and killed his assailant under the reasonable belief that he was in immediate danger of death or great bodily harm at the hands of his assailant, the jury would be justified in finding the defendant not guilty, is erroneous, as the circumstances and conditions stated made it a case of justifiable homicide, and there should have been a clear and unequivocal direction to acquit the defendant, instead of a permission to do so, or a statement that a finding of not guilty was justifiable or defensible.

(Syllabus by the Court.)

In banc. Appeal from district court. Montgomery county; Thos. J. Flannelly, Judge. John Nelson was convicted of manslaughter in the second degree, and he appeals. Reversed.

J. H. Keith, D. R. Nelson, and J. B. & W. E. Ziegler, for appellant. A. A. Godard, Atty. Gen., and J. H. Dana, Co. Atty. (H. C. Dooley and Ergenbright & Piper, of counsel), for the State.

JOHNSTON, J. In an encounter between Albert Morris and John Nelson at Coffeyville on September 4, 1901, the latter shot and killed Morris. Nelson was prosecuted on a charge of murder, and was convicted of manslaughter in the second degree. On the trial and on this appeal he claimed that it was justifiable homicide. They were brothers-inlaw, but their relations had been unfriendly for some time before the encounter; and defendant claimed that on several occasions Morris had threatened to kill him, and came to Coffeyville on the day of the tragedy for that purpose. He claimed, and offered testimony to prove, that Morris went directly to the livery barn where Nelson's horses were, and that, when he (Nelson) went to the barn, Morris stood in the door with an open knife. To avoid meeting Morris, he left the barn, made preparations to leave Coffeyville, anā when about to start for home, and as he was passing down the street towards the barn, with a bundle in his arm, he saw Morris standing on the sidewalk, looking towards him; and he went to the edge of the walk farthest from Morris, and had passed him, when the latter advanced and assaulted him with a knife. After Morris had struck Nelson, and several times had knocked him to his knees, he drew his revolver and fired several shots, one of which struck and killed Morris. In the trial, over the objection and exception of the defendant, the court gave the following instruction as to self-defense: "Nineteenth. Where one without fault is placed under such circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and affords grounds for a reasonable belief in the mind of the assailed that there is imminent danger of the accomplishment of such design he may, acting under these fears alone, slay his assail ant, and be justified by the appearances; and as, where the attack is sudden and the danger imminent, he may increase his peril by retreat, so situated, he may stand his ground, and slay his assailant, even if it is thereafter proven that he might more easily have gained his safety by flight. On a trial for murder, if the defendant relies upon a supposed necessity for the killing as a justification or excuse, the rule to be applied is that the accused must have believed at the time he fired the fatal shot or shots that he was in imminent danger of his life from the